Sharma v. Holder

FILED
NOT FOR PUBLICATION NOV 22 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KHUSHI RAM SHARMA; et al., No. 07-74091

Petitioners, Agency Nos. A078-657-611
A078-657-612
v. A078-657-613

ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted October 12, 2011
San Francisco, California

Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.

Khushi Ram Sharma, Joytika Sharma, and Prashant K. Sharma (together, the

“Sharmas”), native citizens of Fiji, petition for review of the October 16, 2007

Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen as

untimely. The Sharmas argue that the ninety-day deadline should be equitably

tolled because they received ineffective assistance of counsel.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252. We

review the BIA’s denial of a motion to reopen for abuse of discretion.

Ontiveros-Lopez v. INS., 213 F.3d 1121, 1124 (9th Cir. 2000).

We deny the Sharmas’ petition for review on two independent grounds.

First, the Sharmas did not provide their former representatives with adequate notice

of the ineffective assistance of counsel claims. The BIA requires that petitioners

provide former counsel with an opportunity to respond to ineffective assistance

allegations before bringing these allegations to the BIA. Matter of Lozada, 19 I. &

N. Dec. 637, 639 (BIA 1988). The Sharmas sent Mr. Jagprit Sekhon, their second

representative, and Ms. Alisa Kaufman, their third representative, formal notice of

and information regarding the allegations against them on April 17, 2007 — two

days before the BIA received the motion to reopen. Ms. Kaufman had also

received a phone call from the Sharmas’ fourth counsel approximately two weeks

prior to the filing, and Mr. Sekhon also had been informed by telephone on April

17, 2007. The Sharmas mailed Mr. Alberto Villela, their first representative, a

letter of notification of the allegations against him on April 18, 2007. It is not clear

from the record whether Mr. Villela received the letter mailed to him before the

Sharmas filed the motion. The Sharmas failed to comply with the Lozada
requirement that prior representatives be given a reasonable opportunity to respond

to ineffective assistance allegations before these allegations are presented to the

BIA.

Second, the Sharmas do not merit equitable tolling of the ninety-day

deadline because they failed to act with due diligence in uncovering their

ineffective assistance of counsel claims. An alien generally must file his motion to

reopen within ninety days of the final administrative decision. 8 U.S.C. §

1229a(c)(7)(C)(i). This ninety-day deadline may be tolled if the petitioner is

prevented from filing the motion because of “deception, fraud, or error,” as long as

the petitioner acts with “due diligence in discovering the deception, fraud, or

error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). The Sharmas had

reason to know of the availability of ineffective assistance of counsel claims in

May 2004, when Ms. Kaufman raised this claim against Mr. Sekhon. The Sharmas

were on notice that there could be, and had a duty to act diligently to investigate,

ineffective assistance claims against Mr. Villela, Mr. Sekhon, and Ms. Kaufman

when the BIA affirmed the Immigration Judge’s denial of the Sharmas’ asylum

application on November 30, 2004. The Sharmas did not meet with their fourth

representative until February 8, 2007. The BIA could reasonably conclude that the
Sharmas’ actions fall short of the requisite level of due diligence to merit equitable

tolling.

For the reasons discussed above, the BIA did not abuse its discretion in

denying the Sharmas’ motion to reopen. The Sharmas’ petition for review is

DENIED.